L. MOHAPATRA, J. ( 1 ) THE petitioner has been convicted under Section 279 read with 304-A of the Indian Penal Code and has been sentenced to imprisonment for a period of two years for the offence punishable under Section 279 of the I. P. C. and imprisonment for a period of four months for the offence punishable under Section 304-A of the I. P. C. ( 2 ) CASE of the prosecution is that on 6-12-1989 at about 3. 30 p. m. a truck bearing registration No. OAX-137 loaded with bricks came from the Mancheswar Village towards N. H. 5 in a high speed dashed against one Rinku (deceased), daughter of the informant in front of the confectionary shop of one Daikuntha Prusty causing instantaneous death. The accident took place in between the road leading to Kuakhai colony and village Mancheswar. The F. I. R. was lodged by the father of the deceased (P. W. 1) and after completion of investigation charge-sheet was submitted and the petitioner faced trial for the offences committed under the aforesaid provisions of law. ( 3 ) PROSECUTION examined 7 witnesses, out of whom P. W. 1 is the informant and father of the deceased; P. W. 2 is the grand-mother of the deceased and P. W. 3 is the shop-keeper infront of whom the accident took place; P. W. 4 is the grand-father of the deceased; P. W. 5 is the doctor who conducted post-mortem examinationn; P. W. 6 is the M. V. I. who examined the truck in question on police requisition; P. W. 7 is the Investigating Officer. One witness was examined on behalf of the defence who claimed to be the occupant of the truck at the time of accident as a labourer. Trial Court as well as the appellate Court found the petitioner guilty of the offences and held that the petitioner was rash and negligent in driving the vehicle in question and that because of such rash and negligence driving, the accident took place and the child was run over by the truck causing instantaneous death. ( 4 ) SHRI B. C. Patry, learned Counsel appearing for the petitioner submits that there is absolutely no material to show that the petitioner was driving in a rash and negligent manner. Only evidence available on record is that the vehicle was being driven in a high speed. ( 4 ) SHRI B. C. Patry, learned Counsel appearing for the petitioner submits that there is absolutely no material to show that the petitioner was driving in a rash and negligent manner. Only evidence available on record is that the vehicle was being driven in a high speed. According to him, mere driving a vehicle in high speed does not itself constitute offence alleged. Learned Counsel has referred to the decisions reported in (1971) 37 Cut LT 1142 (Ladu Kishore Panigrahi v. State); (1969) 35 Cut LT 723 (Pritam Singh v. State) and another decision of this Court reported in 1981 Cri LJ 583 (Bijuli Swain v. State of Orissa ). Learned Counsel has also drawn attention of this Court to the evidence collected in course of trial and submits that width of the road at the place of accident was enough for two vehicles to pass and surroundings were not crowded and under such circumstances mere driving in high speed does not amount to rash and negligent driving. Learned Counsel has also referred to the evidences of P. Ws. 1, 2, 3 and 4. Learned Counsel further submits that the petitioner in his statement regarded under Section 313, Cr. P. C. has specifically stated that in order to give way to another truck coming from the front side, he had stopped the vehicle and he did not know that in the meantime a child had come in front of the wheel as the same was not visible at front. It is submitted that defence version appears more probable in view of the evidence that has been led on behalf of the prosecution and therefore, the petitioner may be acquitted from the charges. ( 5 ) LEARNED Additional Standing Counsel submits that admittedly there was a shop by the side of the road and that itself indicates that road was not free from crowded surroundings and in a place where surroundings are crowded, driving in a high speed amounts to rash and negligent act. ( 6 ) FROM the records it appears that out of seven witnesses examined on behalf of the prosecution, P. Ws. 2 and 3 are only two eye-witnesses to the occurrence. ( 6 ) FROM the records it appears that out of seven witnesses examined on behalf of the prosecution, P. Ws. 2 and 3 are only two eye-witnesses to the occurrence. P. W. 2 in her evidence has stated that on the date of occurrence at about 3 p. m. she had gone to the shop of P. W. 3 along with the deceased to purchase 'qaju'. At that time the truck loaded with bricks came from the village Mancheswar towards N. E. B. at high speed and ran over the deceased. She has further stated that the front wheel of the truck ran over the deceased. In cross-examination she has stated that the deceased was standing near her. P. W. 3 who is the owner of the shop has stated that on the date of occurrence P. W. 2 and the deceased had gone to his shop and the truck came from the Mancheswar towards N. H. 5 at high speed and ran over the deceased. He has further stated that at the time of accident the deceased was standing on the non-tar portion of the road. In cross-examination he has stated that the road in question is river embankment and two trucks can at a time pass on the road in question. He has further stated that at the time of accident he was selling in his shop and there was no other customer, excepting the deceased and her grand-mother, P. W. 2. P. Ws. 1 and 4 are post-occurrence witnesses. P. W. 7 who is the I. O. has stated that the breadth of the road in question is three meters and two vehicles cannot overtake each other. This statement of the I. O. runs contrary to the evidence of P. W. 3 who has specifically stated that two trucks can at a time pass on the road in question. ( 7 ) CONSIDERING the entire evidence on record, it appears that the road was not too narrow. There is no material on record to show that the surroundings are crowded. There is no material also on record to show that the truck came on non-tar portion causing the accident. ( 7 ) CONSIDERING the entire evidence on record, it appears that the road was not too narrow. There is no material on record to show that the surroundings are crowded. There is no material also on record to show that the truck came on non-tar portion causing the accident. In order to constitute the offence under Section 304-A of the I. P. C. , the prosecution should prove that the death of the person must have been caused by the accused by doing any act in a rash and negligent manner and as such there must be positive proof that the rash or negligent act of the accused was proximate cause which resulted in death of the deceased. Before a person convicted for the offence under Section 304-A of the I. P. C. it must be proved that the act was done with consciousness risk and consequences of death was likely to follow therefrom and there was mens rea in doing such negligent act. The decision reported by the learned Counsel for the petitioner referred to above have also taken such view. In the present case, there is absolutely no material to show that the petitioner was driving in a high speed with total disregard for life and safety of other so as to criminally make himself liable for rashness and negligence. From the materials on record, it appears that there were one or two shops near the place of occurrence, where mere driving the vehicle at a high speed may not amount to rash and negligent act. It is further seen from the prosecution evidence that the deceased was standing on the non-tar portion and no witness has said that the vehicle came up to the non-tar portion and hit the girl. P. W. 2 has further stated that the deceased girl was standing near her and if the vehicle came in a high speed and ran over the deceased, it is not understood as to how P. W. 2 avoided the accident when she claims that she was standing near her. ( 8 ) IN view of such evidence and the decisions referred to above, I allow the revision and set aside the impugned judgment and order of conviction and sentence passed by the Courts below. Petition allowed.